Opinion
No. 29189-4-II
Filed: August 24, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 00-1-00986-1. Judgment or order under review. Date filed: 07/09/2002. Judge signing: Hon. Barbara D Johnson.
Counsel for Appellant(s), Lenell Rae Nussbaum, Attorney at Law, Market Pl Two Ste 200, 2001 Western Ave Seattle, WA 98121-2163.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Robin Lee Jensen appeals convictions for four counts of second degree assault with a firearm enhancement. We affirm.
On April 4, 2000, Sergeant McKay of the Clark County Sheriff's Office received a phone call that Jensen was suicidal. McKay went to Jensen's residence, where he met with Jensen's wife Judy, sister-in-law Patti Center, and several other family members.
McKay e-mailed other officers, alerting them to the possibility that Jensen might become a problem in the future. He said that according to Jensen's wife and other family members, Jensen was suicidal and had been acting strangely over the last few days. He also related that Jensen `is in possession of a substantial number of firearms, including high-velocity rifles'; that Jensen had `told his sister-in-law that if the police or crisis intervention showed up, he was going to shoot it out with them'; and that the situation was `potentially volatile.'
14 Report of Proceedings (RP) at 210-11.
On April 14, 2000, Sergeant Prather of the Clark County Sheriff's Office received another phone call about Jensen. She and three other deputies, Christensen, Tendler, and Hamilton, responded. `[T]he information [they] had was that [Jensen had] been taking some drugs, that he was possibly hallucinating, that he would kill anybody who came to his house, including the police.'
14 RP at 218.
The deputies parked where they could not be seen from the house, but where they could control access to it. Hamilton and Tendler then walked up an embankment from which they could observe the house.
Deputy Carder arrived, as did Jensen's brother Steve. Steve wanted to go to the house alone and talk to his brother, but Prather would not let him. She feared that `not only would we have an armed person who's on drugs who's threatening suicide, threatening to kill the police, we would possibly have a hostage situation, too.'
14 RP at 222.
Meanwhile, Deputy Drew, a hostage negotiator, was attempting to contact Jensen by phone. Each time the call went through, Jensen hung up. One call lasted long enough for Jensen to say that he had taken 30 Halcyon pills.
After about an hour, Hamilton yelled that Jensen was coming out of his house, entering his pick-up, and driving toward the deputies. The deputies waited with guns drawn.
Jensen stopped about one or two car lengths away from the deputies, at least three of whom began yelling for him to put his hands up, get out the truck, and not move. Instead, according to both the deputies and Steve, Jensen picked up a rifle with the barrel pointing at the pickup's ceiling or his own head, but not at the deputies.
At this point, observations diverge. According to Steve, Jensen never pointed a rifle at the deputies; rather, they started firing as he was pointing the rifle at the ceiling of the truck. According to the deputies, they started firing only after Jensen came up with a second rifle that he pointed at them or in their direction. The deputies fired, Jensen dropped out of sight, and the deputies stopped firing.
After the initial round of shots, according to Steve, Jensen slumped over. He was not pointing a gun at the deputies, yet they began firing again. Jensen opened the door of the truck and fell out onto his back.
After the initial round of shots, according to the deputies, Jensen opened the door of his truck and either kneeled or crouched while pointing a rifle at them. They opened fire again and Jensen fell out onto his back. The deputies ultimately recovered `two rifles,' `four pistols,' and `pockets full of ammunition' from Jensen's person and truck.
14 RP at 244.
15A RP at 363.
15A RP at 363.
The State charged Jensen with four counts of first degree assault with a firearm enhancement, and a jury trial ensued. Jensen wanted to call Dr. Geoffrey Loftus to testify about the effects of stress on the perception and memory of witnesses. The State objected, and the trial court excluded the offer.
At the end of trial, the court instructed on first degree assault with a firearm enhancement, second degree assault with a firearm enhancement, and unlawful display of a weapon. In Instructions 18-21, the court described the elements of second degree assault as follows:
To convict the defendant of the crime of Assault in the Second Degree under Count [I-IV], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 14th day of April, 2000, the defendant assaulted [a named deputy] with a deadly weapon;
and
(2) That the acts occurred in the State of Washington.
1 Clerk's Papers (CP) at 95-98.
In Instructions 25-28, the court described the elements of unlawful display as follows:
To convict the defendant of the crime of unlawfully displaying a weapon under Count [I-IV], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 14th day of April, 2000, the defendant displayed a weapon to [a named deputy];
(2) That the defendant displayed the weapon in a manner, under circumstances, and at a time and place that manifested an intent to intimidate another or warranted alarm for the safety of other persons; and
(3) That the acts occurred in the State of Washington, County of Clark. In Instruction 8, the court defined assault as follows:
1 CP at 102-05.
An assault is an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
1 CP at 85; see also WPIC 30.50.
And in Instruction 22, the court defined `lawful force' as follows:
It is a defense to a charge of Assault in the First or Second Degree that force used or attempted or offered to be used was lawful as defined in this instruction.
A person may use or attempt to use or offer to use force to resist an arrest and/or detention by police officers only if the person being arrested and/or detained is in actual and imminent danger of serious injury. The person using or attempting to use or offering to use the force may employ such force and means as a reasonable prudent person would use under the same or similar circumstances.
The State has the burden of proving beyond a reasonable doubt that the force used or attempted or offered to be used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
1 CP at 99.
During deliberations, the jury wrote a note on a copy of Instruction 8. The jury asked in its note, `Can you clarify/define `unlawful force' as it relates to assault?' The jury circled the words `unlawful force' on the copy of the instruction. After conferring with both parties, the court responded, `Please see Instruction No. 22.'
2 CP at 130.
2 CP at 130.
On December 21, 2001, the jury found Jensen not guilty of first degree assault but guilty on four counts of second degree assault while armed with a firearm.
On December 28, 2001, Jensen moved for a new trial on the ground that the jury instructions had not been adequate. In support of his motion, he filed declarations from all twelve jurors, each of whom similarly stated:
During deliberations the jury agreed unanimously that Mr. Jensen did not point a rifle at the deputies, but that he displayed a rifle with his right hand on the forestock and the barrel pointed at the ceiling of the truck, and the deputies responded at that point by opening fire on Mr. Jensen;
During deliberations the jury decided unanimously that one shot was fired from Mr. Jensen's Ruger rifle and that one shot was an accidental discharge;
Although the jury could not know what Mr. Jensen's intent was when he held up the rifle, the jury strongly felt that Mr. Jensen did not want to hurt the officers;
During deliberations the jury was unable to determine the meaning of `unlawful force' from the instructions, and sent a note out to the Court for clarification. The reference to the self-defense instruction was unhelpful, because the jury could not determine what `unlawful force' meant in trying to decide whether holding a rifle up in the cab of the truck should constitute a criminal assault or unlawful display of a weapon;
During deliberations most of the jury's time and energy was spent trying to decide whether to convict the defendant of second degree assault or unlawful display of a weapon. We found no meaningful difference between the definition of unlawful display of a weapon and the definition of assault; and we found no meaningful difference between an intent to create apprehension and fear of bodily injury of another, and intent to intimidate. We had no definition of `unlawful force' to help us differentiate between the two lesser included crimes.
2 CP at 133-56.
The trial court denied Jensen's motion, finding that the jury instructions had been correct and that the declarations inhered in the verdict. Sentencing and this appeal followed.
Jensen presents three questions. Did the jury instructions properly state the elements of the crimes charged? Did the trial court err by denying his motion for new trial? Did the trial court err by excluding Dr. Loftus's testimony?
I.
Jensen bases two arguments on the court's jury instructions. He claims the instructions were defective because they (A) failed to require a finding of the necessary intent and (B) failed to require a finding of the necessary act. The arguments are of constitutional magnitude, so we review them even though they were not raised below.
State v. Eastmond, 129 Wn.2d 497, 503, 919 P.2d 577 (1996). We reject the State's assertions of non-reviewability and invited error.
A.
Citing State v. Byrd, Jensen assails the second paragraph of Instruction 8 because it failed to mandate a finding that he intended to create apprehension and fear of imminent bodily injury. It was not enough, he says, that the paragraph required `an intent to create . . . apprehension and fear of bodily injury,' plus the actual creation of `reasonable apprehension and imminent fear of bodily injury.'
125 Wn.2d 707, 887 P.2d 396 (1995).
Jensen argues that under Byrd, `the actor must intend to make the other person afraid that they are about to be injured, i.e., the `imminence' of the injury feared must also be intended.' Br. of Appellant at 29.
Byrd held that `specific intent either to create apprehension of bodily harm or to cause bodily harm is an essential element of assault in the second degree.' Instruction 8 adequately included that element, and thus was not erroneous. We do not consider whether the word `imminent' might be required, not as an omitted element of assault reviewable for the first time on appeal, but rather as part of the definition of assault reviewable after proper objection at the trial court level.
125 Wn.2d at 713; see also Byrd, 125 Wn.2d at 711 (formulating issue as whether assault in second degree `require[s] specific intent to create in another apprehension of bodily harm'); Byrd, 125 Wn.2d at 716 (concluding that `State must prove beyond a reasonable doubt that [the defendant] intended to create in [the victim's] mind a reasonable apprehension of harm'); Eastmond, 129 Wn.2d at 500 (`Assault by attempt to cause fear and apprehension of injury requires specific intent to create reasonable fear and apprehension of bodily injury'; quoting with seeming approval WPIC 35.50, after which Instruction 8 was patterned).
See State v. Scott, 110 Wn.2d 682, 690-91, 757 P.2d 492 (1988). Nor do we consider whether Instruction 8 might be improved by employing or omitting `imminent' consistently throughout; by using `imminent' to modify `bodily injury' rather than `fear'; or in other ways.
B.
Jensen also assails the second paragraph of Instruction 8 because it did not adequately require the jury to find `violence begun,' as opposed to `violence menaced.' Quoting State v. Murphy, he claims that `there must be some physical effort by the actor to carry into execution the violence menaced before it can be said that an assault has been committed.'
7 Wn. App. 505, 512, 500 P.2d 1276, review denied, 81 Wn.2d 1008 (1972).
Br. of Appellant at 30.
Instruction 8 required the jury to find an act done with unlawful force, and Instruction 22 described lawful and unlawful force. An act done with unlawful force is the equivalent of violence begun. We conclude that Instruction 8 was adequate, whether or not it was perfect.
In other words, we do not think the instruction warrants reversal, even assuming that it might have been improved had Jensen `advance[d] his argument in a well crafted instruction' at the trial court level. See Scott, 110 Wn.2d at 691.
II.
Jensen argues that the trial court abused its discretion by not granting a new trial. He relies on the juror affidavits that he solicited following the verdict. Those affidavits obviously describe the jurors' deliberations and thought processes. As a result, they inhere in the verdict and may not be considered. We conclude that the trial court did not abuse its discretion.
Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651 (1962) (juror's misunderstanding of the court's instructions is a matter that inheres in the verdict); State v. Young, 48 Wn. App. 406, 414, 739 P.2d 1170 (1987) (juror affidavits expressing confusion about meaning of court's instructions reflected thought process and could not be used to impeach verdict).
We reject as meritless Jensen's argument that the jurors' affidavits constitute special findings within the meaning of RCW 4.44.440.
III.
Jensen argues that the trial court erred by excluding Dr. Loftus's testimony on eyewitness perception. Although he recognizes that the matter is one for the discretion of the trial court, he argues that the trial court necessarily abused its discretion under the circumstances present here, the result being that it was required to admit his offer of proof. Believing that the circumstances are not that clear, and that the trial court retained discretion to rule either way, we conclude that it did not abuse its discretion by ruling as it did.
State v. Cheatam, 150 Wn.2d 626, 649, 81 P.3d 830 (2003) (dealing with eyewitness identification); State v. Coe, 109 Wn.2d 832, 843, 750 P.2d 208 (1988) (same); State v. Guloy, 104 Wn.2d 412, 430, 705 P.2d 1182 (1985) (same), cert. denied, 475 U.S. 1020 (1986).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and VAN DEREN, J., concur.